SAME-SEX MARRIAGE AND THE RIGHT TO PRIVACY

Abstract

Over the past decade, several state appellate courts have analyzed whether their respective state constitutions protect the right to marry a same-sex partner. Those courts addressing the issue have differed both in their analyses and in their ultimate conclusions, although there have been striking similarities among those courts upholding same-sex marriage bans and among those striking them down, differences in wording among the respective state constitutional provisions notwithstanding. To understand the widely differing analyses regarding the right to marry someone of the same sex, it will be helpful to consider some of the background regarding the right to marry in particular and the right to privacy more generally. The United States Supreme Court has recognized that certain rights related to family matters are extremely important and cannot be abridged by the state absent a showing that compelling state interests would be undermined. A matter of some dispute involves the criteria used by the Court to determine which rights qualify for this heightened protection and how the scope of those rights should be defined. The cases discussed in this Article have all been decided on state constitutional grounds, which differ both in their wording and in the degree of protection that they offer. While a state's equal protection guarantees might provide an additional basis upon which to argue that the right to marry a same-sex partner is protected by the state constitution, the focus of this Article is on the privacy or substantive due process analyses offered by the differing courts.